A place for a tired old woman to try to figure things out so that the world makes a bit of sense.

Sunday, March 22, 2009

Flip-Flop?

We are now 62 days into the Obama administration. Two months isn't long enough to provide a complete measure of a president, but in this case it does give us some indication of what we can expect. It also is sufficient to judge whether or not promises made during the campaign are likely to be kept.

Two major newspapers, the New York Times and the Los Angeles Times, each made some assessments of President Obama's first months in office and, interestingly, dealt with some of the same issues, including Candidate Obama's promise to repudiate the Bush administration's chicanery once he became President Obama. Although each editorial board was willing to cut the new president some slack because of the dire state of the nation when he took office, both noted that the obvious excuses weren't going to fly forever, especially when it came to the Global War on Terror.

Another issue on which Obama seems to be backsliding involves the "state secrets" privilege, the legal doctrine the Bush administration overused and misapplied to have embarrassing cases thrown out of court on grounds of national security. Before the election, Obama criticized President Bush's repeated use of the privilege, but in a federal courthouse in February, when offered the opportunity to change positions and not invoke it in a case charging government torture, the Obama administration demurred.

We understand that being president carries great responsibility, and that when the director of Central Intelligence marches into the Oval Office with a file full of top-secret information and tells you that its disclosure could gravely damage the country, it's not so easy to say no. But Obama must not renege on his promises to increase transparency and to stop using the state secrets privilege to deny critics their day in court.

It was great news, but also recalled our distress that the Justice Department had abandoned transparency just last month in a case before the United States Court of Appeals for the Ninth Circuit. The case involves five men who were seized and transported to American facilities abroad or countries known for torturing prisoners.

The Obama administration advanced the same expansive state-secrets argument pressed by Mr. Bush’s lawyers to get a trial court to dismiss the case without any evidence being presented. Even the judges seemed surprised, asking whether the government wanted a delay to reconsider its position.

The Obama team should have taken the delay. It should now support bipartisan legislation to fix this problem by expanding judges’ powers to examine evidence the government wants to keep secret and decide whether to admit it based on facts rather than claims of presidential power. It is hard to fathom what signal Mr. Obama is trying to send by stifling cases that must be heard.

Both editorial boards were far kinder than they should have been on this issue. The excuse that revealing how the CIA operates would jeopardize its ability to gather the information necessary to protect the nation just doesn't wash. When an agency of this government engages in activities in clear contravention of domestic and international law, including those dealing with torture and kidnapping, that agency needs to be brought back under control, something the Bush White House refused to do because it suited Bush's delusions of absolute power.

The continuing invocation of the state-secrets doctrine to cover the collective backsides of an unrestrained CIA would be laughable if it weren't so dangerous to our concepts of human rights and the rule of law. That President Obama has bought into the specious CIA arguments does not bode well for the rest of his term. Yes, he has removed the term "enemy combatant" from the lexicon, and yes, he is working to close the Guantanamo Bay prison, but if he doesn't accord those kidnapped, tortured, and detained the rights guaranteed by our constitution, knowing the charges for which they are being held and access to a speedy and fair trial, those moves are meaningless.